Withholding rent over dog nuisance

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Q: We rent the top half of a duplex in Chicago. The tenants below adopted a shelter dog eight months ago, who has severe separation anxiety and barks loudly and incessantly any time he’s alone. We’ve spoken to the neighbors (who don’t want to give the dog drugs or use a bark collar, thinking that these will "hurt" the dog), and then we took it to the landlord, over a month ago. The landlord talked to the neighbors twice, but nothing has changed. Are we within our rights to withhold rent until the dog is gone or the problem is resolved? –Fred and Alice

A: Withholding rent is an option for tenants when the landlord has failed to maintain the property according to law, if state law provides for this remedy. Not all states give tenants this option; only about two-thirds of the states do, and some of them limit the withholding remedy to specific types of repairs.

It would be unusual for a rent-withholding statute to allow tenants to use this strategy for the type of problem you’re facing (a lack of reasonable peace and quiet), which does not involve making structural repairs or providing essential services.

In fact, in Illinois, rent withholding is allowed only when the property has been taken over by a receiver, after the landlord has failed to pay for utilities. The court directs the tenants to pay rent to the receiver directly. (Ill. Comp. Stat. 735/2.)

But in the city of Chicago, which has its own rental ordinance, rent withholding is available to tenants. They may withhold rent when the landlord fails to maintain the property, but that’s not all: The list of maintenance failures that will support withholding is introduced with the phrase, "includes but is not limited to." (Residential Landlord and Tenant Ordinance.)

This handy phrase may give you the ability to withhold rent due to the landlord’s failure to live up to his duty to give you "quiet enjoyment" of your rented home. An age-old concept, this duty exists in every rental, requiring landlords to deal with noisy tenants by getting them to quiet down or by evicting them. If a judge were to decide that failure to give you quiet enjoyment was a valid reason for withholding rent, you’d be on safe ground. (To find out, you’ll need to do a little research to find out if similar cases have prevailed.)

Suppose, however, that you can’t use withholding in response to a breach of the duty to deliver quiet enjoyment. Not all is lost. By law everywhere, if the landlord doesn’t fulfill this duty, the tenant may consider that failure to be a breach of the rental agreement, justifying the tenant’s moving out. Typically, the tenant must give the landlord notice of the problem and a reasonable amount of time to fix it.

I realize that moving out is not the remedy you asked about, but it could give you a way to exert pressure on your landlord to resolve the problem and allow you to stay put. Alert the landlord that not only will you move, but you’ll also sue in small claims court for the damages you’ve suffered as a result of his breach of the lease. Such damages could include the cost of moving; applying for a new rental; and the difference, if any, between the rent you’re now paying and the rent you end up paying for a comparable apartment.

Any savvy landlord will think twice before allowing this scenario to unfold. Even a less-savvy owner will realize that unless he deals with the barking dog, he’ll face this problem again, with new tenants. The only sensible solution is to confront the dog-owning neighbors and demand that they solve the problem. If they cannot retrain their dog (or refuse to try), they are the ones who should move out or, sad as it may be, find another home for the dog.

Q: My tenant, who lives alone in her half of our duplex, has left for a monthlong vacation, which I knew about. I did not know that she was planning on having someone come to the property twice a day to feed and look after her cats. This person is quite annoying — she parks in our driveway, plays loud music while she’s there, invites others to come over, and stays several hours each day. Is there anything I can do about it? –Deborah E.

A: At this point, the horse is out of the barn … rather, the cat is out of the house. Your best bet is to meet the sitter when she arrives and speak to her about her activities. Point out to her that, as your tenant’s guest, she is legally bound to the same standards as her traveling friend — no parking in the driveway, no loud music. You can also try to insist that she not invite others to the house, for reasons explained just below.

In the future, when a tenant announces a long absence and the plan for a regular house sitter or pet sitter, consider it to be a request that the tenant sublet the rental for the length of the vacation. A subtenant is someone who steps into the shoes of the main tenant for a period of time, bound to the same terms and conditions of the tenant’s lease. Crucially, a subtenant requires the consent of the landlord. This will give you an opportunity to insist on meeting the proposed subtenant and going over the rules, including parking and noise.

As for inviting more friends, you can also attempt to stop this. Although it would be unreasonable to say "No visitors" to someone who is planning on living there, it’s not unreasonable to say so for someone who is stopping by to check on the cats. Making this rule after the fact, however, is going to be difficult, because you may hear a protest along the lines of, "If I’m stepping into the shoes of the tenant, and she can have visitors, why can’t I?" You have a rejoinder if these meetups are themselves creating a disturbance.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.